IMPORTANT POINT
A local inspection under Order XXXIX, Rule 7 of CPC ought to be confined, to extent it is necessary for proper adjudication of issue involved in suit.

Dipankar Datta, J.—The petitioner is the defendant (hereafter the defendant) in a suit for ejectment and mesne profit instituted by the opposite party (hereafter the plaintiff). Reasonable requirement is one of several grounds taken by the plaintiff for securing eviction of the defendant. He is contesting the suit by duly filing his written statement of defence.

2. While the suit was progressing, three separate tenants allegedly vacated possession of three shop rooms in favour of the plaintiff in the suit premises and she has since been running business therefrom. The defendant intended to incorporate such fact in his written statement and, accordingly, filed an application under Order VI, Rule 17 of the Code of Civil Procedure (hereafter the Code) for amendment of his written statement.

3. At the same time, the defendant filed an application under Order XXXIX, Rule 7 of the Code. The points for local inspection as indicated in such application read as follows:

“1. To note how many rooms in the suit building at premises No.1 Manmotho Nath Ganguly Road, Kolkata-700 002:

2. How many rooms and shop rooms under the possession and enjoyment of the petitioner and her family members and the measurement and made of user of the rooms at the suit premises.

3. To draw a sketch map of suit premises.

4. Local features pointed out by the petitioner and Opp. Party at the time of holding commission.”

4. The plaintiff contested the application by filing a written objection. It is noted that at a prior point of time, she herself had filed an application under Order XXXIX, Rule 7 of the Code praying for inspection on the following points:

“1. To note how many room/rooms under the occupation of the petitioner and measurement and mode of user and to draw a sketch map of the Premises No.1 Manmotho Nath Ganguly Road, Police Station Chitpore, Kol-2:

2. Any local features as pointed out by the parties.”

5. The learned Advocate commissioner appointed by the learned Trial Court had submitted his final report dated May 4, 2005. In so far as point No.1 is concerned, he had mentioned that the plaintiff was in occupation of only one room on the just back side of the ground floor of the Premises No.1. Manmotho Nath Ganguly Road, Purba Kolkata- 700 002”; the measurement thereof from East to West being 15 ft. 3 inches and from North to South being 10 ft. 7 inches. He had also included in his report his comments on the mode of use of such room. Regarding point No.2 he did not make any comment since the parties did not point out any feature.

6. The learned Advocate commissioner has since been examined as PW2 and in his report marked Ex. 6.

7. The learned Trial Judge took up the application of the defendant under Order XXXIX, Rule 7 of the Code for consideration. He examined the application filed by the defendant as well as the application previously filed by the plaintiff, and found that points of inspection Nos. 2 and 4 in the application filed by the defendant were identical to the points on which inspection was sought for by the plaintiff. He was of the view that a clear picture regarding extent of accommodation available to the plaintiff in the suit property had already come up before the Court and that the defendant was seeking a re-commission on the basis of alleged subsequent developments. According to the learned Judge, the defendant had to prove the fact to acquisition of additional rooms by the plaintiff by producing evidence in that regard and it is only after he is successful in establishing his plea that he could pray for local inspection to bring out a clear picture of the shape, size and extent of the accommodation at the disposal of the plaintiff. It was further observed that directing local inspection without proof of such acquisition would amount to fishing out of evidence, which is not permissible in law, and the learned Advocate commissioner could not be expected to decide who was in possession of the individual rooms in the